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Wednesday, January 19, 2011

Research Paper on Federalism

Research Paper on Federalism

In our world today there are three major structures for government. The most prevalent is the unitary system, where power is held in at a national level and very little power is delegated to the smaller political subdivisions. The least common is the Confederation, which is a union of similar states with only some power being held at a national level. Then there is Federalism, which is an equal sharing of powers between both national, local and state governments. The United States has gone from being colonies under the British unitary system, to a confederation following the revolution, to what in my opinion is most successful thus far, a federal system by the Constitution. Based upon the enormous size of our nation and the great deal of diversity among our people, federalism has proven to be the strongest form of government our nation is able to put together. However, federalism in the US has evolved a significant amount since its initial inception in the late 1780’s. Since that time, two major kinds of federalism have become dominate in the political world.

The first form of federalism, which holds the federal and state governments as sovereign and equal, is dual federalism. Entailed in this theory is the idea that the parts of the Constitution are interpreted very tightly. If the constitution does not clearly grant a duty then the federal government has no jurisdiction. Examples of where the constitution would be followed very tightly were in: the 10th Amendment to the Constitution, the Necessary and Proper Clause, the Commerce Clause, and the Supremacy Clause. Under dual federalism, it was made very sure that power was delegated to the rightful recipient according to the exact words of the constitution. With this form of federalism it seems to me that a majority of the powers belong to the states and the only powers the federal government holds are those written in black and white in our constitution. There is minimal room for interpretation, and therefore was minimal use of the Elastic Clause.

The second type of federalism I learned about that our nation has toyed with, which states that the national government is supreme over the states in that the states may find their own way to fulfill federal government regulations so long as their ways are constitutional, is known as cooperative federalism. In this form of federalism the Necessary and Proper Clause, also known as the Elastic Clause, is applicable to our constitution and allows it to evolve with our time. Under cooperative federalism the 10th Amendment, the Supremacy Clause, and the Commerce Clause all take on new meaning as well. As opposed to dual federalism, in cooperative federalism all of these motions are put to full use. The Constitution is eligible for interpretation and powers are divided almost equally among the levels of government. The federal government is responsible to set forth regulations for the nation as a whole, with education standards being an example, and then it is up to the states to decide how they, as a state, are going to meet those regulations.

Each state has the power to make its own method of meeting federal standards, and therefore the powers of the two governments are on somewhat of a more balanced level. Looking back at papers I’ve received it seems to me that over time the United States has made a move from dual federalism to cooperative federalism, and in my opinion an example of this shift is shown in the court case of Gibbons vs. Ogden and the decision of the courts. In this case the courts decided that “The right Congress held to regulate commerce under the Commerce Clause could be exercised to its utmost extent, and acknowledges no limitations, other than those prescribed in the constitution....” And then, over the years, the courts continued making decisions limiting the powers of the states; with ability to restrict voting rights or draw political districts, being an example of outcomes. I don’t feel that the courts were so much expanding the powers of the national government from their rulings, rather, I feel they were simply restricting states from going against the constitution.

As mentioned above, the Commerce Clause has been a huge part of our constitution. Under Article 1, Section 8, Clause 3 of our constitution this clause states that: “The Congress shall have power to... regulate commerce with foreign nations, and among the several states, and within Indian tribes.” These words have since provided our nation with, in my opinion, two effects upon our legal system. First and foremost it has become the base for a great deal of legislation which the congress has passed. Although the laws passed may only indirectly involve “commerce,” with civil rights laws in the 1960’s being an example, the word commerce is used in a somewhat vague term and is therefore able to provide reason. The civil right laws became justified by the constitution on the level that “racial discrimination interfered with the free flow of persons and goods in interstate commerce.” This then gave congress the right to pass nondiscrimination laws. The second effect that it has had, in my opinion, is it is able to provide power to the courts in order to override state legislation which may be directly effecting interstate commerce.

Which again brings us back to the concept of cooperative federalism. One example of where this power was demonstrated was in the most recent case regarding cigarette sales online in New York. New York, in order to try and limit smoking, tried to ban the sales of cigarettes online, however this notion was over ruled with the congress stating that it effected interstate commerce. And this is just yet another example, of how in recent history, the United States has steadily been steering away from the concept of dual federalism and leaning more towards the idea of cooperative federalism.

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